Sammer Yasin v. Travis Bragg

Fifth Circuit

Sammer Yasin v. Travis Bragg

460 F. App'x 345

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 9, 2012

Docket11-50459

StatusUnpublished

This text of 460 F. App'x 345 (Sammer Yasin v. Travis Bragg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sammer Yasin v. Travis Bragg, 460 F. App'x 345 (5th Cir. 2012).

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Opinion

PER CURIAM: *

Sammer Yasin, federal prisoner #60562-066, appeals the district court’s sua sponte dismissal of his Bivens 1 action for failure to state a claim based on Yasin’s failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a). Yasin contends that his failure to exhaust was due to interference by prison officials, that he should have been given notice and an opportunity to address the exhaustion issue prior to the dismissal of his complaint, and that there is now no administrative remedy available because the time for grieving has elapsed.

We review the district court’s dismissal de novo. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999). Yasin’s complaint alleged that he requested a grievance form from the prison counselor but was never given one. The district court’s determination that Yasin had not exhausted his administrative remedies was based on the infer *346 ence that Yasin had made only a single request and a finding that Yasin had not alleged that prison officials had refused to give Yasin the appropriate form. Yasin was not required to plead any allegations with respect to exhaustion. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). As it was not crystalline from the face of Yasin’s complaint that he had failed to exhaust his administrative remedies, the district court’s dismissal on that ground was premature. See id.; Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir.2007); Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir.1982).

We therefore VACATE and REMAND for service of the defendants and subsequent proceedings.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1

. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

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PER CURIAM: *

Sammer Yasin, federal prisoner #60562-066, appeals the district court’s sua sponte dismissal of his Bivens 1 action for failure to state a claim based on Yasin’s failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a). Yasin contends that his failure to exhaust was due to interference by prison officials, that he should have been given notice and an opportunity to address the exhaustion issue prior to the dismissal of his complaint, and that there is now no administrative remedy available because the time for grieving has elapsed.

We review the district court’s dismissal de novo. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999). Yasin’s complaint alleged that he requested a grievance form from the prison counselor but was never given one. The district court’s determination that Yasin had not exhausted his administrative remedies was based on the infer *346 ence that Yasin had made only a single request and a finding that Yasin had not alleged that prison officials had refused to give Yasin the appropriate form. Yasin was not required to plead any allegations with respect to exhaustion. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). As it was not crystalline from the face of Yasin’s complaint that he had failed to exhaust his administrative remedies, the district court’s dismissal on that ground was premature. See id.; Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir.2007); Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir.1982).

We therefore VACATE and REMAND for service of the defendants and subsequent proceedings.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1

. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

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460 F. App'x 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sammer-yasin-v-travis-bragg-ca5-2012.

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